Trial No. 1847/2000
Plaintiff Mr. T, Dlamini
Defendant Mr. C. Ntiwane
is an application for rescission of judgment. The applicant
originally came to court by way of urgency seeking that the execution
of the judgment granted on the 16th June 2000 be stayed pending
formalisation of the application. The further relief which was sought
is that the judgment granted in favour of the respondent to be
rescinded and set aside.
upon that the applicant sought leave to file his notice of intention
to defend and plea in the main action and the applicant somewhat
surprisingly asked for an order for costs in the event of the
respondent opposing the application. The matter
before court on a number of occasions and initially a stay of
execution pending the outcome of the application was granted and the
only question remaining before the court was whether rescission of
the judgment should be granted. The applicant claimed that he was
never served with the summons. There was a return by the Sheriff to
the contrary and in view of the conflict on this point I directed
that evidence ought to be heard.
question also arose as to when the applicant acquired knowledge of
the judgment or knew about it. This was important because there was a
long delay between the granting of the judgment and this application.
far as service is concerned the deputy sheriff who claimed to have
effected service gave his evidence in a direct manner and confirmed
what he had said in his return. The applicant also testified on this
point and claimed not to have been at the place where service is said
to have taken place, on the day in question and said that he was
otherwise engaged elsewhere and could not have received service. The
vital potion of the evidence was not put to the sheriff.
have drawn the inference that the applicant's evidence has been
manufactured to meet the case. I am satisfied that he was served with
the summons in this matter and that he did not pay any attention
thereto until his property was in the danger of being sold in
execution The deputy sheriff testified in a perfectly satisfactory
manner and was untouched in cross examination. The same cannot be
said for the applicant and his story is more than unlikely. His
credibility is also adversely affected by the other issue.
far as knowledge of the judgment is concerned there was the testimony
of the Plaintiff's attorney testifying that after judgment had been
taken he fortuitously met the applicant outside the attorney's office
and mentioned that there had been a judgment. He asked the applicant
what he is going to do about it. Apparently nothing much transpired
apart from the fact that according to Mr. Ntiwane the applicant
handed him E900.00 which was deposited to the credit of the attorneys
account for safe keeping or in custody probably for the respondent,
that is the plaintiff in the action. The applicant denies any such
contact. A copy of the receipt was produced and the attorney's books
were tendered for inspection.
it comes to a test of credibility one has to bear in mind that the
applicant places himself four squarely against two very credible
witnesses and his account is plainly, on the probabilities, a
fabrication merely to avoid payment.
application therefore is refused with costs and the interim interdict